Javier Gonzales Guerrero was too drunk to drive home from a pre-Halloween party, so he asked someone to drop him off at an Extended Stay Deluxe Hotel in San Jose, according to relatives, still dressed in his doctor costume and with a gold-colored toy gun.

It was a decision that almost cost him his life.

Responding to a call Saturday night of a man with a gun passed out in the hotel's stairwell, police shot the 25-year-old construction worker multiple times when he reportedly made a threatening move.

He survived. But his family said Tuesday that they simply can't believe that falling asleep in a hotel stairwell with a fake gun is a good reason to get shot by police.

"We are shocked," said cousin Luis Barragan Jr., "and traumatized."

And they are on the cusp of hiring John Burris, one of the Bay Area's most prominent police misconduct attorneys.

San Jose police have fired their weapons at seven suspects so far this year, six of them since mid-September. It is one of the highest numbers in years. Three people have died. As questions swirl, the man with the gold-colored gun may end up among the more controversial of these cases. Six people were killed in police shootings in 1999. Ten people were shot at in 1994; four were killed.

The unusual shooting has echoes of a 2000 case in Los Angeles when an officer responded to a Halloween party and shot and killed an actor wearing a gorilla costume and wielding a replica gun that may have been used as a movie or television prop. The officer was cleared.

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Officer shootings and other uses of force are evaluated legally on the basis of whether the force was "reasonable" under the circumstances at the time. Officers are trained to shoot to stop -- not kill -- a dangerous or life-threatening suspect.

'Hoping for the best'

The young man's family, gathered at a San Jose hospital, questioned whether the shooting was reasonable and denied Gonzales Guerrero was any kind of a threat when he was shot. Police on Monday released 911 tapes of the call for service along with a photo of the fake gun, which cracked when officers stepped on it after the shooting.

Gonzales Guerrero has no criminal record in Santa Clara County, according to a review of court records.

Valerie Barragan, who spoke to her cousin, said he attended a warehouse party at a tile company, whose owners work closely with her father's construction company. It's the same company where Gonzales Guerrero began working right after finishing Overfelt High School.

Aside from working out at the gym and playing video games, Gonzales Guerrero worked and spent time with his 11 siblings and many cousins. At the party, Barragan said that her cousin had photographs taken of himself, in medical scrubs, with the fake toy gold gun, which belonged to a friend. Barragan wasn't sure if the friend had been dressed up as a cowgirl or a police officer.

"He must have forgotten he had it," she said.

Instead of driving home after drinking, Gonzales Guerrero got a ride to the hotel on 55 E. Brokaw Road, where he had planned to sleep it off, according to Barragan. But he passed out in the stairwell.

Police said that cheerleaders staying at the hotel alerted the receptionists to the strange, sleeping and armed man. Employees tried to wake him, to no avail. A receptionist told a dispatcher she saw the gun poking out from his waistband.

His family declined to give his medical condition, and authorities have not revealed where Gonzales Guerrero was shot.

"We're just hoping for the best," said a tearful Valerie Barragan, who grew up with Gonzales Guerrero in their San Jose home. "He's just a very nice, loving person. He hates any trouble. He is always the peacemaker."

Assistant Chief Rikki Goede said nationally there is an increase in violence toward police officers. Among the local examples, three instances of people driving vehicles at officers. She defended the four officers who fired at Gonzales Guerrero.

"They are believing he is brandishing a firearm," Goede said. "They believed that gun was real."

Goede said the incident should be a warning to people not to mix toy guns and alcohol this Halloween.

Police had to act fast

"They need to be aware of how some people might see them and call police," she said. "Until officers know for certain the gun isn't a replica, they will treat it as such."

Justin Buffington, the officers' lawyer, described the event as a "110 percent clean shoot."

Police force experts who were contacted by this newspaper were cautious about evaluating the case with such limited details. But one said that cops should know the difference and another openly laughed when he saw a photograph of the plastic gun.

"Wow, to me it looks like a toy," said David Dusenbury, a force expert who helped the Santa Clara County District Attorney's Office evaluate the case of Phuong Ho, the San Jose State student whose violent and videotaped arrest by San Jose police sparked a lawsuit and community unrest.

But Dusenbury also said it would have been hard for the officers to see the gun if it were stuffed in the man's waistband: "Initially, I would be careful. I may treat it like it's real."

Other experts agreed that the officers had to be extremely cautious and avoid getting themselves or hotel guests shot.

"We don't know enough facts," said Ron Martinelli, a former San Jose officer and a force expert.

All the experts interviewed said that letting him sleep was not an option because the hotel was filled with vulnerable guests, and it was impossible to guess what the suspect's motives were or whether he was on drugs.

A shot can be fired in as little time as one-fourth of a second, leaving police little time to determine if a gun is real or fake, experts say. And using a "less lethal" option would have been extremely dangerous to the officers because they had to presume he had a real gun.

Real guns come in many colors, experts said, and are sometimes painted to resemble fake guns.

There have been cases in which real gold guns have been used to commit violent crimes, including a recent local homicide case.